Citation NR: 9703481
Decision Date: 01/31/97 Archive Date: 02/12/97
DOCKET NO. 95-41 124 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to recognition of the veteran’s grandson, [redacted],
as the veteran’s son by adoption for purposes of
Department of Veterans Affairs (VA) benefits.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his sister-in-law
ATTORNEY FOR THE BOARD
D. Dean, Counsel
INTRODUCTION
The appellant was a veteran of active military service before
and during World War II, and he was a prisoner of war from
April 1942 to January 1943.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from Administrative Decisions of the
Department of Veterans Affairs (VA) Manila Regional Office
(RO). A hearing was held before a Hearing Officer in
February 1996, and a transcript of that hearing is of record.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contended that he provided proper adoption
papers and evidence that he was the sole financial support of
[redacted], formerly his grandson.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the Board’s decision to dismiss the appeal due to the
appellant’s death during the appeal process.
FINDINGS OF FACT
1. The appellant was rated permanently and totally disabled
and in receipt of improved pension benefits from September
1976.
2. A claim seeking recognition of the appellant’s natural
grandson, [redacted], as his son by adoption was filed in
June 1994 and denied by RO Administrative Decision in August
1994.
3. An appeal to the Board on this issue was subsequently
initiated and perfected by the appellant, and the case was
transferred to the Board in November 1996.
4. The case before the Board now contains notification that
the appellant died in January 1997, at age 83.
CONCLUSION OF LAW
The veteran’s claim has been extinguished by his death, and
his appeal does not survive his recent death. 38 C.F.R.
§ 20.1302 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
By Administrative Decision in August 1994, the RO determined
that the appellant’s daughter, the natural mother of his
grandson, [redacted], continued to live within the
veteran’s household and exercised at least some parental
custody and authority over the boy, thereby preventing
recognition of him as the appellant’s son by adoption.
38 C.F.R. § 3.57(e)(2)(iii)(1995). The appellant initiated
and perfected an appeal to the Board on this issue; however,
he died in January 1997 at the age of 83, during the pendency
of this appeal. It is also noteworthy that the appellant’s
spouse had predeceased him in December 1994 at age 80. Thus,
it appears doubtful whether either the appellant or his
spouse were truly “physically and mentally fit to adopt”
their grandson (born in March 1987 and not yet 10 years old),
as recited in the March 1994 Philippine Adoption Decree.
When an appeal is pending before the Board at the time of an
appellant’s death, the Board may complete its action on the
issues properly before it without application from the
survivors. 38 C.F.R. § 20.1302 (1995)(emphasis added).
However, following implementation of the aforementioned
regulatory authority, the U.S. Court of Veterans Appeals
(Court) held that a claim does not survive the death of the
claimant, and that substitution of the survivors for the
original appellant is not permitted. Landicho v. Brown,
7 Vet.App. 42 (1994). The Court has subsequently extended
this principle to other factual situations. See, Erro v.
Brown, 8 Vet.App. 500 (1996). Thus, in view of the
appellant’s recent death, this appeal is dismissed.
ORDER
The appeal is dismissed.
J.F. GOUGH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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